Tarax Tarax et al v. Blossom West Inc. et al

Filing 66

MEMORANDUM OPINION & ORDER re: 50 MOTION for Summary Judgment . filed by Blossom West Inc., Ronen Seri, Ramiro Ramirez. For the reasons stated above, Defendants motion for summary judgment is DENIED. This resolves Dkt. No. 50. A conference is hereby scheduled for April 28, 2021 at 3:00 p.m. By April 21, 2021, the parties are ORDERED to meet and confer and submit a joint letter proposing approximate trial dates and a schedule for the submission of the pre-trial materials id entified in Rule 6 of the Court's Individual Practices in Civil Cases. The parties shall also indicate if they seek a referral to the Mediation Program or to the Magistrate Judge for settlement discussions. (As further set forth in this Order.) (Status Conference set for 4/28/2021 at 03:00 PM before Judge Alison J. Nathan.) (Signed by Judge Alison J. Nathan on 3/31/2021) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

3/31/21

Efrain Tarax Tarax, et al.,
19-cv-6228 (AJN)

Plaintiffs,
–v–

MEMORANDUM OPINION &
ORDER

Blossom West Inc., et al.,
Defendants.

ALISON J. NATHAN, District Judge:
Plaintiffs initiated this lawsuit in July 2019, alleging that Defendants were in violation of
federal and state labor laws. Presently before the Court is Defendants’ motion for summary
judgment on the federal claims.1 Dkt. No. 50. For the reasons that follow, the motion is
DENIED.
I.

Background
The following facts are drawn from the parties’ statements made pursuant to Local Civil

Rule 56.1 and are undisputed unless otherwise noted.
Plaintiffs are four current or former employees of Blossom of Columbus, a vegan
restaurant operated by Defendant Blossom West Inc. Dkt. No. 62 (“Pl. 56.1 Resp.”) ¶¶ 1, 3. At
the restaurant, Plaintiffs worked variously as night porters, deliverymen, dishwashers, and
“helpers.” Id. ¶ 3. Defendant Ronen Seri is a principal of Blossom West Inc. Id. ¶ 2. The

Although Defendants’ motion for summary judgment mentions some of the state law claims, the motion
does not appear to move for summary judgment on those claims. In any event, even if Defendants
intended to move for summary judgment on the state law claims, the Court would deny the motion
because there are genuine issues of material fact.
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parties dispute what Defendant Ramiro Ramirez’s role was at the restaurant; while all sides agree
that Ramirez was employed as a manager at the restaurant throughout this period, three of the
Plaintiffs contend that Ramirez had an ownership role in the restaurant—or at least that he
represented himself as having an ownership role. Id. ¶ 25.
Many of the central facts in this case are in dispute. For instance, the parties disagree as
to whether Plaintiffs were paid minimum wage, id. ¶¶ 4, 19; the frequency with which Plaintiffs
worked overtime and whether they were fully paid when they did, id. ¶ 5; whether Plaintiffs
signed for or acknowledged their hours and pay, id. ¶¶ 6, 13; the accuracy of the records kept by
the restaurant, id. ¶¶ 14–16; and whether Plaintiffs ever voiced any complaints to the restaurant
and its managers regarding their compensation, id. ¶ 7; see also id. ¶ 17 (in which the parties
disagree whether management was receptive to employees’ concerns regarding their
compensation). While the parties agree that all Plaintiffs worked at the restaurant at some point,
they disagree about the dates of employment and the number of hours that each Plaintiff worked
per week. See id. ¶¶ 8–12.
Plaintiffs initiated this lawsuit on July 3, 2019. Dkt. No. 1. On May 24, 2020, Plaintiffs
amended their complaint. Dkt. No. 49. They allege that Defendants violated the minimum wage
and overtime provisions of the FLSA, and they also bring a number of claims under state law.
See Dkt. No. 49 ¶¶ 155–190. They seek compensatory and liquidated damages, a declaratory
judgment with respect to the statutory violations they allege, and attorneys’ costs and fees,
among other things. See Dkt. No. 49, Prayer for Relief, at 26–27.
On July 6, 2020, Defendants moved for summary judgment. Dkt. No. 50. The motion is
fully briefed. Dkt. Nos. 56, 63.
II.

Legal Standard

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Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The court must “construe the facts in the light most favorable to the non-moving party
and resolve all ambiguities and draw all reasonable inferences against the movant.” Delaney v.
Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (internal quotation marks and alterations
omitted). If the court determines that “the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial” and summary
judgment should be granted to the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
The movant bears the initial burden of presenting evidence on each material element of
its claim or defense and demonstrate that he is entitled to relief as a matter of law. See Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). But when the burden of
proof at trial would fall on the non-moving party, the moving party may meet its burden by
“point[ing] to a lack of evidence . . . on an essential element” of the non-moving party’s claim.
Simsbury-Avon Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.
2009). There is a genuine issue of material fact if a reasonable jury could decide in the nonmoving party’s favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000).
The Court “is not to weigh the evidence but is instead required to view the evidence in the light
most favorable to the party opposing summary judgment, to draw all reasonable inferences in
favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted).
To survive a summary judgment motion, the non-moving party “must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v.

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Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). In doing so, the non-moving party “must do
more than simply show that there is some metaphysical doubt as to the material facts . . . and
may not rely on conclusory allegations or unsubstantiated speculation.” Id. (internal quotation
marks and citation omitted).
III.

Discussion
“To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must

prove that he performed work for which he was not properly compensated, and that the employer
had actual or constructive knowledge of that work.” Kuebel v. Black & Decker Inc., 643 F.3d
352, 361 (2d Cir. 2011) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87
(1946)).
Defendants base their motion for summary judgment on their contention that no genuine
issue of material fact exists because the evidence in the record does not support Plaintiffs’ claims
that they worked uncompensated hours or that Defendants had actual or constructive knowledge
that Plaintiffs worked uncompensated overtime hours. See Dkt. No. 52 (“Def. Br.”) at 3–5; Dkt.
No. 63 (“Reply”) at 1–6. The Court disagrees, and it concludes that genuine issues of material
fact preclude summary judgment.
A. Uncompensated hours
To prevail at trial on their unpaid minimum wages or unpaid overtime compensation
claims, Plaintiffs will have the burden of proving “that [they] performed work for which they
were not properly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87
(1946). This is not an especially taxing burden. If the employer’s records are proper and
accurate, an employee may discharge that burden “by securing the production of those records.”
Id. at 687. If, on the other hand, the employer’s records are “inaccurate or inadequate and the

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employee cannot offer convincing substitutes,” and employee may discharge that burden by
proving that “he has in fact performed work for which he was improperly compensated” and by
“produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just
and reasonable inference.” Id. at 687. In that event, the burden shifts to the employer “to come
forward with evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence.” Kuebel, 643 F.3d at
362. A similar standard applies for overtime claims under New York law. See Berrios v.
Nicholas Zito Racing Stable, Inc., 849 F. Supp. 2d 372, 380 (E.D.N.Y. 2012).
Whether Plaintiffs worked uncompensated or under-compensated hours is disputed.
Defendants have submitted payroll records that they contend are accurate and rebut Plaintiffs’
claims of having performed uncompensated work. See Def. Br. at 4–5; Dkt. No. 54, Seri Decl.,
¶¶ 8–9 & Ex. A. According to the Defendants, “plaintiffs were paid for all hours for which they
worked and signed for, and they did not work any uncompensated or under-compensated hours.”
Def. Br. at 4. As evidence, they point to the Plaintiffs’ payroll records, which—according to the
Defendants—were signed by the Plaintiffs without objection. Id. at 4–5. And the payroll
records submitted into evidence indeed bear Plaintiffs’ signatures. See Dkt. No. 54, Seri Decl.,
¶¶ 8–9 & Ex. A. In their sworn declarations, however, all of the Plaintiffs insist that the payroll
records are inaccurate; specifically, they claim that for years, they were told to sign blank pieces
of paper that, at the time they signed them, did not have any calculations as to the hours they had
worked. See Pl.’s 56.1 Resp. ¶¶ 13–14; see also Lopez Decl. ¶¶ 12–13; E .Tarax Decl. ¶¶ 9–10;
Sontay Decl. ¶¶ 11–12; S. Tarax Decl. ¶¶ 11–12.
That testimony is sufficient to raise a genuine issue of material fact. Of course, the
existence of the payroll records “may detract” from the credibility of the testimony, but “it does

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not entitle” Defendants “to judgment as a matter of law in light of [Plaintiffs’] testimony that
[they were] instructed by [management]” to sign blank pieces of paper rather than a document
that accurately reflected the hours that they had worked. Kuebel, 643 F.3d at 365. See also
Aponte v. Mod. Furniture Mfg. Co., LLC, No. 14-CV-4813 (ADS) (AKT), 2016 WL 5372799, at
*13 (E.D.N.Y. Sept. 26, 2016) (“[T]he Plaintiffs have offered credible testimony that
[Defendants’] time records are not accurate because the Defendants had a practice of not
recording overtime hours. . . . [T]he fact that the time sheets do not show that the Plaintiffs
worked overtime only serves to highlight what the Court finds to be a classic question of fact for
the jury decide.”). “Assessments of credibility and choices between conflicting versions of the
events are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996). And because Plaintiffs have presented testimonial evidence
indicating that their signature in the records did not reflect an acknowledgment of the hours they
worked—which, combined with their testimony regarding the hours they worked, would render
the records “inaccurate”—they are entitled, at this juncture, to “the benefit of Anderson’s ‘just
and reasonable inference’ standard.” Kuebel, 643 F.3d at 363.
The “just and reasonable” standard does not impose a high burden. Kuebel, 643 F.3d
362. Plaintiffs concede that they lack any documentary evidence to support their claims, but in
their declarations they each provide estimates of the hours and the amount they were paid per
week. See Dkt. No. 58, Lopez Murillo Decl., ¶¶ 6–10; Dkt. No. 59, E. Tarax Tarax Decl., ¶¶ 7–
8; Dkt. No. 60, Sontay Herrera Decl., ¶¶ 6–10; Dkt. No. 61, S. Tarax Decl., ¶¶ 5–9. Such
testimonial evidence provides a basis from which a reasonable jury could conclude that they
have met their burden under the “just and reasonable” standard to pass the burden onto the
Defendants under the Anderson test. The estimate of the hours they worked may not ultimately

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be precise, but the Anderson test is not especially onerous. Furthermore, the estimates conform
to the Second Circuit’s observation “that it is possible for a plaintiff to meet this burden through
estimates based on his own recollection.” Kuebel, 643 F.3d at 362. As above, Defendants’
disputes with the accuracy of that testimony ultimately go to the persuasiveness of the evidence
and the credibility of the Plaintiffs, which the Court may not consider when applying the
summary judgment standard. See Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.
1996).
Defendants also argue that the Court should disregard Plaintiffs’ sworn declarations
pursuant to Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), in which the Second
Circuit recognized an exception to the well-established rule that a Court should not assess the
credibility of witnesses’ testimony when applying the summary judgment standard. Jeffreys, 426
F.3d at 554; see also Reply at 2–3. The Second Circuit has made clear, however, that this is a
“narrow exception” that applies exclusively in “extraordinary case[s]” where the testimony is so
incredible that it would be “impossible” for a reasonable jury to find in the non-moving party’s
favor. Frost v. New York City Police Dep’t, 980 F.3d 231, 245 (2d Cir. 2020) (citing Jeffreys,
426 F.3d at 554). Plaintiffs’ testimony does not rise to such a high standard. Unlike the
testimony in Jeffreys, Plaintiffs’ declarations are not inherently contradictory. Jeffreys, 426 F.3d
at 555 n.2; see also Frost, 980 F.3d at 246. That the testimony is not corroborated by other
evidence, see Reply at 3, is insufficient to satisfy the Jeffreys standard. And whatever
deficiencies may exist in Plaintiffs’ testimony “are not serious enough to render the declaration
incredible as a matter of law.” Frost, 980 F.3d at 246.

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For the reasons stated above, the Court concludes that genuine issues of material fact
preclude Defendants’ entitlement to summary judgment regarding whether Plaintiffs performed
work for which they were not properly compensated.
B. Actual or constructive knowledge
At trial, Plaintiffs will also have to establish that Defendants “had actual or constructive
knowledge that [the Plaintiffs were] performing uncompensated work.” Kuebel, 643 F.3d at 365;
see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 287 (2d Cir. 2008); Holzapfel v. Town of
Newburgh, N.Y., 145 F.3d 516, 524 (2d Cir. 1998). Defendants contend that they are entitled to
summary judgment on this point because none of the evidence establishes that Defendants had
the requisite knowledge. See Reply at 4–6.
In Kuebel, the Second Circuit held that the plaintiff-appellant had “raised a genuine issue
of material fact” as to his employer’s knowledge that he was working off the clock on the basis
of his testimony. Kuebel, 643 F.3d at 365. Kuebel’s testimony included assertions that he had
complained to his supervisor that he was working more hours than he was recording. Id. While
the Second Circuit acknowledged that other facts in the record may undermine his claims at trial,
it concluded that that testimony, standing alone, was sufficient to raise a genuine issue of
material fact as to the employer’s knowledge. Id.
The same is true here. Plaintiff Santos Tarax’s testimony includes a number of assertions
that create a genuine issue of material fact. Specifically, Santos Tarax asserts that “[n]ot
infrequently, [he] was asked to continue working until after 8:00 A.M., notwithstanding the fact
that my scheduled work shift had ended by then.” Dkt. No. 61, S. Tarax Decl., ¶ 6. That he was
asked to work past his scheduled work shift would have put Defendants on actual or constructive
notice that he was working overtime and that he needed to be compensated for those hours. See

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Kuebel, 643 F.3d at 365 (noting that Kuebel’s testimony that he “specifically complained to his
supervisor, Davolt, that he was working more than forty hours per week but recording only
forty” was sufficient to raise a genuine issue of material fact). Defendants dispute the credibility
of Santos Tarax’s testimony, but at this juncture, the Court must credit that testimony as creating
a genuine issue of material fact that Defendants knew, or should have known, that he was
working overtime. In addition, Santos Tarax claims that “about once a month, [he] complained
to Jesus (last name unknown), a supervisory employee at the restaurant . . ., about shortfall in the
payment of my wages.” Dkt. No. 61, S. Tarax Decl., ¶ 15. To be sure, that he is unable to
identify with specificity who Jesus is may undermine the credibility of his testimony, and the
testimony does not allege that he raised his concerns directly with the owner of the restaurant.
At this juncture, however, his testimony that he raised his concerns with someone in a
supervisory capacity also creates a triable issue of material fact that Defendants had actual or
constructive notice that he was working some number of uncompensated hours. Cf. Torrenegra
v. Grameen Am., Inc., No. 15-CV-3153 (RER), 2017 WL 1401291, at *5 (E.D.N.Y. Apr. 19,
2017) (denying summary judgment in part because “Plaintiff testified that he complained about
his hours to management.”).
Along similar lines, Plaintiff Getulio Lopez Murillo testified that on approximately three
separate occasions, he complained to Defendant Ramiro Ramirez about a shortfall in his wages
and that Ramirez dismissed his complaints. Dkt. No. 58, Lopez Murillo Decl., ¶ 17. Three of
the Plaintiffs contend that Ramirez represented to them that he had some kind of ownership role.
Pl.’s 56.1 Resp. ¶ 25. But, in any event, it is undisputed that Ramirez was employed as a
manager at the restaurant at all relevant times. Id. ¶ 25. At a minimum, Lopez Murillo’s
allegations that he complained to Ramirez, the manager, about wage shortfalls creates a genuine

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issue of material fact as to whether Defendants were put on notice about hours being
uncompensated. And while the weight of that testimony may be in dispute at trial, at a minimum
it raises a genuine issue of material fact.
Plaintiffs further contend that a genuine issue of material fact exists as to Defendants’
notice on the basis of their testimony that Defendants had them sign blank pieces of paper before
receiving their wages. See Dkt. No. 56 (“Pl. Opp. Br.”) at 2, 4; see also Dkt. No. 58, Lopez
Murillo Decl., ¶¶ 12–13; Dkt. No. 59, E. Tarax Tarax Decl., ¶¶ 9–10; Dkt. No. 60, Sontay
Herrera Decl., ¶¶ 11–13; Dkt. No. 61, S. Tarax Decl., ¶ 11. They argue that this testimony
“suggests” that Defendants “were intent upon concealing the extent of Plaintiffs’ work, or at
least willfully blinding themselves to such information.” Pl. Opp. Br. at 4. The Court agrees that
this testimony, if credited, allows an inference from which a reasonable jury could conclude that
this practice was designed to conceal the actual hours worked. And a reasonable jury could rely
upon such an inference in concluding that the Defendants had actual or constructive knowledge
that Plaintiffs were being undercompensated for their work.
For all of these reasons, genuine issues of material fact as to whether Defendants had
actual or constructive knowledge preclude summary judgment.
IV.

Conclusion
For the reasons stated above, Defendants’ motion for summary judgment is DENIED.

This resolves Dkt. No. 50.
A conference is hereby scheduled for April 28, 2021 at 3:00 p.m. By April 21, 2021, the
parties are ORDERED to meet and confer and submit a joint letter proposing approximate trial
dates and a schedule for the submission of the pre-trial materials identified in Rule 6 of the

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Court’s Individual Practices in Civil Cases. The parties shall also indicate if they seek a referral
to the Mediation Program or to the Magistrate Judge for settlement discussions.
SO ORDERED.

Dated: March 31, 2021
New York, New York
____________________________________
ALISON J. NATHAN
United States District Judge

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